Hedgecock Lumber Co. v. Willis W. Apple, & Willis W. Apple, P.A.
| Decision Date | 15 March 2022 |
| Docket Number | COA21-376 |
| Citation | 869 S.E.2d 371 (Table) |
| Parties | HEDGECOCK LUMBER COMPANY, Plaintiff, v. Willis W. APPLE, and Willis W. Apple, P.A., Defendants. |
| Court | North Carolina Court of Appeals |
Hill Evans Jordan & Beatty, A Professional Limited Liability Company, by R. Thompson Wright, for plaintiff-appellant.
The Bomar Law Firm, PLLC, by J. Chad Bomar, for defendants-appellees.
¶ 1 A trial court cannot err by declining to retroactively extend the time to issue an alias and pluries summons after an action had been discontinued because it lacks any authority to do so. Further, when an appellant fails to make a transcript from a motion to dismiss hearing part of the record on appeal and nothing else in the record indicates its argument advanced on appeal was preserved for our review, we need not address whether emergency directives issued by the then Chief Justice of our Supreme Court applied to the issuance of an alias and pluries summons.
¶ 2 On 31 July 2020, Plaintiff Hedgecock Lumber Company filed a Complaint in Forsyth County Superior Court against Defendants Willis W. Apple and Willis W. Apple, P.A., alleging legal malpractice arising out of professional services that were performed "in the Spring of 2017." Although the three-year statute of limitations would have expired "at the latest on [7 May 2020,]" the statute of limitations was extended by the North Carolina Supreme Court Chief Justice's 21 May 2020 Order ("May 2020 Order"), in accordance with N.C.G.S. § 7A-39(b)(1), that stated: "All periods of limitation that were set to expire between 16 March 2020 and 31 July 2020, inclusive of those dates, are hereby extended until the close of business on 31 July 2020." Order of the Chief Justice of the Supreme Court of North Carolina (21 May 2020);1 see N.C.G.S. § 1-15(c) (2021) (). Pursuant to the May 2020 Order, the statute of limitations for Plaintiff's legal malpractice claim expired on 31 July 2020.2
¶ 3 The same day that Plaintiff filed its Complaint , on 31 July 2020, the Forsyth County Clerk of Superior Court issued a civil summons to Defendants. However, service of this summons was never perfected. On 22 October 2020, Plaintiff mailed an alias and pluries summons to the Forsyth County Clerk of Superior Court. The Forsyth County Clerk of Superior Court did not issue an alias and pluries summons until 3 November 2020, 95 days after the issuance of the original summons. The alias and pluries summons was received by Defendants on 14 November 2020.
¶ 4 Defendants filed a motion to dismiss arguing, inter alia , pursuant to Rule 12(b)(6), the timing of the issuance of the alias and pluries summons constituted a break in the chain of summonses and that, for statute of limitations purposes, the action should be treated as commenced on 3 November 2020, which was after the statute of limitations expired. In its Order entered 15 February 2021 ("February 2021 Order"), the trial court granted Defendants’ motion to dismiss and dismissed Plaintiff's action with prejudice. Plaintiff timely filed a Notice of Appeal on 16 March 2021.
¶ 5 Plaintiff argues the trial court erred in granting Defendants’ motion to dismiss because the trial court (A) should have retroactively extended the time for issuance of the alias and pluries summons, and (B) should have applied the emergency directives issued by an order of the Chief Justice of the North Carolina Supreme Court.
¶ 6 "The standard of review for the dismissal of a complaint [under Rule 12(b)(6)] is de novo. " Atkinson v. Lesmeister , 186 N.C. App. 442, 444, 651 S.E.2d 294, 296 (2007).
On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether ... the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.
Holleman v. Aiken , 193 N.C. App. 484, 491, 668 S.E.2d 579, 584-85 (2008).
¶ 7 Rule 4 of the North Carolina Rules of Civil Procedure provides that a summons must be issued within five days of when a plaintiff files a complaint. N.C.G.S. § 1A-1, Rule 4(a) (2021) (). "Personal service or substituted personal service of summons as prescribed by Rules 4(j) and (j1) must be made within 60 days after the date of the issuance of summons." N.C.G.S. § 1A-1, Rule 4(c) (2021).
A summons not served within sixty days loses its vitality and becomes functus officio , and service obtained thereafter does not confer jurisdiction on the trial court over the defendant. However, although a summons not served within sixty days becomes dormant and unserveable, under Rule 4(c) it is not invalidated nor is the action discontinued.
Valentine v. Solosko , 270 N.C. App. 812, 815, 842 S.E.2d 621, 624 (marks omitted), disc. rev. denied , 376 N.C. 537, 851 S.E.2d 45 (2020).
¶ 8 If a defendant is not served within 60 days after the date of the issuance of the original summons, Rule 4(d) provides that the action may be continued in existence so long as the plaintiff follows one of the following methods of extension:
N.C.G.S. § 1A-1, Rule 4(d) (2021).
¶ 9 However, when there is neither an endorsement nor issuance of an alias and pluries summons within the time specified by Rule 4(d), the action is discontinued as to any defendant who was not served with summons within the time allowed. N.C.G.S. § 1A-1, Rule 4(e) (2021). Thereafter, endorsement may be obtained or alias and pluries summons may issue, but, as to any defendant who was not served with summons within the time specified in Rule 4(d), the action shall be deemed to have commenced on the date of such issuance or endorsement. Id.
¶ 10 While a trial court has the discretion to extend the time for service of an alias and pluries summons after the summons becomes dormant but before the expiration of the summons, a trial court does not have the discretion to retroactively extend the time for issuance of the alias and pluries summons after the action has been discontinued. Wetchin v. Ocean Side Corp. , 167 N.C. App. 756, 760-61, 606 S.E.2d 407, 409-10 (2005) ; Russ v. Hedgecock , 161 N.C. App. 334, 336-37, 588 S.E.2d 69, 70-71 (2003) (), disc. rev. denied , 358 N.C. 545, 599 S.E.2d 407 (2004) ; Dozier v. Crandall , 105 N.C. App. 74, 78, 411 S.E.2d 635, 638 (), disc. rev. improvidently allowed , 332 N.C. 480, 420 S.E.2d 826 (1992).
¶ 11 Here, the original summons was issued within five days of the filing of the Complaint. However, personal service of the summons was not made within sixty days of 31 July 2020, when the Complaint was filed. Plaintiff's action could be continued as long as an alias and pluries summons was issued within 90 days of 31 July 2020. N.C.G.S. § 1A-1, Rule 4(d)(2) (2021). The alias and pluries summons was issued on 3 November 2020, more than 90 days from the issuance of the last preceding summons, so the action was discontinued, and a new action commenced on 3 November 2020. See N.C.G.S. § 1A-1, Rule 4(e) (2021). As the alias and pluries summons was issued after the action was discontinued, the trial court did not have any authority to retroactively extend the time for issuance of the alias and pluries summons, and therefore the trial court did not have the discretion to prevent the discontinuance of Plaintiff's action. Wetchin, 167 N.C. App. at 760, 606 S.E.2d at 409-10 ; Russ , 161 N.C. App. at 336-37, 588 S.E.2d at 70-71 ; Dozier , 105 N.C. App. at 78, 411 S.E.2d at 638. The trial court did not err by granting Defendants’ motion to dismiss and dismissing Plaintiff's claim as barred by the statute of limitations.
¶ 12 Plaintiff argues "the trial court should have applied Emergency Directives 4 and [15], of the Order of the Chief Justice of the Supreme Court of North Carolina, so as to allow the Clerk's issuance of an alias summons effective four days earlier than the actual issuance date of [3 November 2020]" and "[u]nder the letter and spirit of the Emergency Directives, the filing and issuance of the alias summons on [3 November 2020] should be deemed timely."
¶ 13 Emergency Directives 4 and 15 are contained in the Order of the Chief Justice of the Supreme Court of North Carolina , issued 15 October 2020 ("October 2020 Order")...
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